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Constitutional Logjam

By reviving the practise of constitutional courts, Chief Justic of India UU Lalit has brought the focus back on constitutional jurisprudence. The question is how well the constitutional courts will perform. In 2021, only three judgments were delivered by Constitution benches
3 Sep 2022 | India Legal
constitutional logjam
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By Sanjay Raman Sinha

Chief Justice of India (CJI) UU Lalit has hit the ground running. The first thing he did after taking charge of the top office of the country’s judiciary was to constitute two constitutional benches. These benches are presiding three days every week to hear matters pertaining to constitutional validities; the aim being to complete one case each week. The CJI has given instructions to compress arguments in written form so that hearing is expediated.

Currently, there are about 53 cases requiring a constitution bench of five or more judges. The question is how efficiently the top court will discharge its duty as the constitutional court of the nation. 

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The JALDI report of VIDHI shows that the country’s largest court has become the court of appeal. Between 1950-54, mere 15% of the cases decided by the Supreme Court were decisions of Constitution benches. Between 2005 and 2009, this figure had come down to 0.12%. In 2021, only three judgments were delivered by the Constitution benches.

The Supreme Court has dual jurisdiction—appellate jurisdiction and constitutional court jurisdiction, so it is not that the apex court is doing something which it should not be doing. But over the years, neglect of important constitutional cases has impacted on the core issue of justice delivery.

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It is not a matter of shortage of judges alone. When there were fewer judges, there were more constitution court cases decided. For instance, if we look before and after the Emergency—before the Emergency, there were on an average 70 constitutional matters which were decided, whereas after the Emergency, the constitutional matters became less. For years before the new CJI’s initiative, no bench was hearing constitutional matters. That is a serious cause of concern because now all the politically sensitive cases like cases relating to abrogation of Article 370, CAA, demonetization are on the backburner. Historically, 71% of all Constitution bench cases were decided within two years of being filed in the Supreme Court; and just 6% took eight years or more. 

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Over the past three decades, an increasing number of cases are being brought under both writ and appellate jurisdictions. Simultaneously, the number of regular matters disposed of by the Supreme Court has been rising over the decades. The declining importance accorded to constitutional courts was noticed by the Law Commission which  proposed in 2009 the creation of a dedicated Constitution bench in Delhi and Cassation benches in four regions of the country to improve acc­ess and deal with backlog.

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With renewed attention on Constitution benches, the effort should be to streamline processes. Written arguments, strict timelines, judicious listings, clear, short verdicts and randomly selected judges can go a long way in making constitutional courts effective.

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